RECENT DECISIONS
February 2008
By David Marsh and Tom Powell
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In this issue, we first address two recent and well- reasoned Alabama Supreme Court decisions that you may have read about.
Later, we focus upon another recent decision that probably was "off your radar" – unless you handle medical malpractice cases. But as you will see, the Alabama Supreme Court's decision, premised upon the discrete language in Rule 56 of our Alabama Rules of Civil Procedure, sends a very clear message that the evidentiary requirements of Rule 56 can and likely will be more and more strictly enforced. That strict enforcement has wide-ranging application to summary judgment motions in a variety of cases.
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Griffin v. Unocal Corp., Ms. 1061214, 2008 Ala. LEXIS 19 (Jan. 25, 2008) – You likely read about this one in the newspaper and in cyberspace. Brenda Griffin sued her late husband's employer, Unocal, and others for causing the wrongful death of her husband, David Griffin, through his exposure to various chemicals at his workplace, a tire manufacturing plant. David Griffin worked at the tire plant from 1973 until 1993. David Griffin was diagnosed with acute myelogenous leukemia in September 2003 and he died in February 2004 as a result of that disease. Brenda Griffin filed her wrongful death action in February 2006, one day short of two years after David Griffin's death.
In the trial court, the defendants moved to dismiss or for a judgment on the pleadings, upon the basis of Garrett v. Raytheon, 368 So. 2d 516 (Ala. 1979), which had held that a personal injury action based on exposure to a hazardous chemical accrues on the date of the last exposure and an action not filed within two years of the last exposure is barred by the two-year statute of limitations. The trial court granted the defendants' motions and Brenda Griffin appealed.
The Supreme Court reversed and remanded in a per curiam opinion in which Chief Justice Cobb and Justices Lyons, Woodall, Parker and Murdock concurred. Justices See, Stuart, Smith and Bolin dissented. The majority opinion said:
"As the defendant chemical companies aptly state, the dispositive issue in this case is whether 'the date of last exposure rule [is] still the law in Alabama.' Defendant chemical companies' brief, at 2. Stated simply, it is not, because we hereby overrule Garrett and its progeny. We do so for the reasons set forth in Justice Harwood's scholarly dissent to this Court's no-opinion affirmance in Cline v. Ashland, Inc., [Ms. 1041076, January 5, 2007] ___ So. 2d ___, ___, 2007 Ala. LEXIS 5, *40 (Ala. 2007) (Harwood, J., dissenting), which is attached as an appendix to this opinion. We hereby adopt the reasoning of that dissent as the opinion of the Court in this case.
"In particular, as Justice Harwood stated, 'a cause of action accrues only when there has occurred a manifest, present injury.' Cline, ___ So. 2d at ___, 2007 Ala. LEXIS 5 at *59 (Harwood, J., dissenting)(emphasis added). We need not repeat Justice Harwood's accurate description of the meaning of the word 'manifest' in this context. Further, as Justice Harwood advocated in his dissenting opinion in Cline, the new accrual rule of toxic-substance-exposure cases will be applied prospectively, except in this case, where it will apply retroactively. Griffin, as the prevailing party in bringing about a change in the law, should be rewarded for her efforts."
2007 Ala. LEXIS 19 at *3-4.
Justice Harwood's dissenting opinion in Cline, which was adopted by the Supreme Court in Griffin, noted that "Garrett's last-exposure rule is purely a 'court made' rule, because § 6-3-20 then provided, and § 6-3-20(a) now provides, only that civil actions must be commenced within the applicable limitations period 'after the cause of action has accrued.' The Garrett Court simply declared, as a matter of policy rather than scientific fact, that a toxic-exposure cause of action accrues contemporaneously with the last exposure to the toxic substance, it being judicially deemed that an injury has occurred at that time as a matter of law." Cline v. Ashland, Inc., 2007 Ala. LEXIS 5 at *41.
Justice Harwood's dissent in Cline also said:
"As things now stand, and as left in place by the majority in this case, the law in this State would seem to be this: A person exposed to a toxic substance having the potential to cause disease on a delayed basis, but who has suffered no manifest, present injury within two years thereafter, may not file an action within that two-year period. Hinton, supra; Southern Bakeries, supra. If, after two years, that same person in fact suffers an injury from the exposure and files an action, the action will be dismissed on the basis that it should have been filed earlier. Thus, no matter when the person attempts to file the action, it is either too soon or too late. This is a classic Catch-22, and one that would seem to violate Art. 1, § 13, Ala. Const. 1901, which provides, in pertinent part, 'that every person for any injury done him ... shall have a remedy by due process of law.'"
2007 Ala. LEXIS 5 at *54-55.
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COMMENTS: The adoption in Griffin of Justice Harwood's thoughtful analysis in Cline shows that a majority of the Alabama Supreme Court is willing to modify wrong-but-settled law to achieve substantial justice for the citizens of this State. We commend the five members of the Court who joined in Griffin for their efforts.
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Ex parte Bowman, Ms. 1061079, 2007 Ala. LEXIS 268 (Ala. Dec. 7, 2007) – Clarence Heard and his wife, Janice Heard, sued the manufacturer of a continuous fermenter tank, APV North America, Inc., and several fictitiously described defendants for injuries that Clarence Heard sustained at his workplace, Ventura Foods, LLC. After the statute of limitations had run, the Heards amended their complaint to substitute Phil Bowman for one of the fictitious defendants, claiming that Bowman was one of the co-employees or supervisors of Ventura who negligently installed the APV tank. The evidence showed that Bowman was Ventura's quality assurance manager at the time the APV tank was installed.
Bowman filed a motion to dismiss or for summary judgment, arguing that the Heards could not substitute him for a fictitious party after the statute had run, because the Heards had known Bowman's true identity at the time they filed suit. The trial court denied Bowman's motion and Bowman petitioned for a writ of mandamus directing the trial court to dismiss him as a defendant.
The Supreme Court denied Bowman's petition. Justice Bolin's opinion for all nine members of the Supreme Court recognized that a plaintiff may not substitute a person for a fictitiously described defendant unless (1) the plaintiff was ignorant of the defendant's true identity at the time the complaint was filed and (2) the plaintiff used due diligence to discover the defendant's true identity before filing the complaint. 2007 Ala. LEXIS 268 at *8-9. The Heards argued that, although they knew Bowman's role as qualityassurance manager before they filed suit, they were ignorant, until another worker's deposition was taken, of Bowman's role in removing or failing to install a safety device at the time the tank was installed. With respect to that argument, the Court said:
"The fact that Clarence knew that Bowman was in charge of quality control is not related to the Heards' claim. There is no logical and necessary linkage between knowledge that an individual had responsibility for the quality of the product produced and knowledge that such individual was a participant in acquiring, installing, and modifying the machine that makes the product. Accordingly, Bowman has failed to show that he is entitled to mandamus relief on the ground that Clarence knew that Bowman was in charge of quality control."
2007 Ala. LEXIS 268 at *11-12.
The Court further held that, because Bowman failed to assert in his motion to dismiss that he was prejudiced by the Heards' eleventhmonth delay between the co-worker's deposition and the amendment, the petition could not be granted on the basis of delay in substitution. 2007 Ala. LEXIS 268 at *13-14.
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COMMENTS: The excellent decision in Bowman is a good indication that the Alabama Supreme Court may be taking a more practical stance regarding fictitious party practice. Often times, as was the case in Bowman, even the most diligent plaintiff does not know the detailed facts concerning the roles of various potential defendants until after meaningful discovery is had and the statute of limitations otherwise has run.
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Carraway v. Kurtts, Ms. 1060589, 2007 Ala. LEXIS 272, 2007 WL 4357753 (Ala. Dec. 14, 2007) – Richard Carraway brought a wrongful death action against Dr. Terry Kurtts, a board-certified family practitioner in Baldwin County, alleging that Dr. Kurtts's breach of the standard of care caused the death of Shirley Carraway. Dr. Kurtts moved for summary judgment, offering his own affidavit in which he averred that he was familiar with the standard of care required of a board-certified family practitioner and that he met that standard of care at all times material to the claims in Carraway's complaint.
The trial court entered summary judgment in favor of Dr. Kurtts and Carraway appealed. The Supreme Court affirmed. Justice See wrote the opinion for the Court, in which Justices Stuart, Smith, Bolin and Parker concurred and Chief Justice Cobb, together with Justices Lyons, Woodall and Murdock, concurred in the result. The first issue raised by Carraway was whether Dr. Kurtts met his initial burden of showing that he did not breach the standard of care. The Supreme Court found: "Dr. Kurtts's affidavit denies that he breached the applicable standard of care, an essential element of [Carraway's] claims against Dr. Kurtts. We therefore hold that the trial court did not err in finding that Dr. Kurtts presented sufficient evidence to shift the burden of proof to [Carraway]." 2007 Ala. LEXIS 272 at *8.
Carraway's second issue was whether the trial court erred in entering the summary judgment before discovery was completed. The Supreme Court rejected that argument, noting that the trial court granted Carraway a two-and-a-half-month continuance, pursuant to Rule 56(f), in which to gather and present evidence opposing Dr. Kurtts's motion. Id. at * 9.
Carraway's third issue is the one to which we now invite your close attention. The Supreme Court's analysis of the requirements of Rule 56 will apply in every type of case and not only medical malpractice cases. Carraway argued as his third issue that he did meet the requirements of Ala. Code § 6-5-548, i.e., that a plaintiff in a medical malpractice action present substantial evidence showing that the health care provider failed to exercise such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice ordinarily have and exercise in a like case. That requirement, the Supreme Court noted, "is usually met by presenting expert medical testimony, which may be provided only by a 'similarly situated health care provider.'" Id. at *12-13.
Turning to the facts at hand, the Supreme Court found:
"Here, [Carraway] presented two affidavits regarding the standard of care from his expert witness, Dr. Toni Cutson. [ . . . ] The first affidavit fails to comply with the mandatory elements for admissibility under Rule 56(e), Ala. R. Civ. P. Rule 56(e) requires that sworn or certified copies of all documents referenced in the affidavit be attached to or served with the affidavit. [Carraway] did not attach or serve certified copies of the medical documents Dr. Cutson considered in rendering her opinion. Indeed, no documents were attached to or served with the first affidavit. [ . . . ] Moreover, [Carraway] admits to this Court that Dr. Cutson's opinion regarding the alleged breach in this wrongful-death action was based on multiple uncertified medical records, including the decedent's autopsy report. [ . . . ]
"Although [Carraway] attached several medical documents as exhibits to his motion in opposition to a summary judgment, it is impossible to reconcile the 14 records referenced in the first affidavit with the 23 records that appear in the exhibits before us. [ . . . ] Thus, we cannot conclude that [Carraway] has corrected the defects in the affidavit he submitted, even had the medical records attached to the motion all been sworn or certified.
"On appeal, [Carraway] alludes to Dr. Cutson's curriculum vitae, which was attached to [Carraway's] motion in opposition to the motion for a summary judgment[.] [ . . . ] Dr. Cutson's affidavit [ . . . ] does not reference the curriculum vitae, nor does the curriculum vitae reference the affidavit that [Carraway] would now have us say it supports. Moreover, if the curriculum vitae was intended to support the affidavit, it needed to have been sworn or certified. See Rule 56(e), Ala. R. Civ. P. [ . . . ] The curriculum vitae was not submitted in support of Dr. Cutson's affidavit and fails to meet the mandatory requirements of a supporting document to an affidavit under Rule 56(e), Ala. R. Civ. P. Thus, it is not properly before us in support of an affidavit with which it was not submitted and which does not even reference it."
Id. at *14-17 (emphasis added).
The remainder of the Carraway v. Kurtts decision generally pointed out that, even if Dr. Cutson's affidavit and curriculum vitae had properly been presented according to Rule 56(e), they failed in other respects to show that Dr. Cutson met the "similarly situated health care provider" requirements of Ala. Code § 6-5-548. The opinion returned, again and again, to the procedural requirements of Rule 56, and Carraway's failure to meet those requirements. The following portion could apply to any case in which a summary judgment motion is filed:
"The only provision that Rule 56(e), Ala. R. Civ. P., makes for supplementing an affidavit is by 'depositions, answers to interrogatories, or other affidavits.' None of the subsequent timely submissions by [Carraway], including the curriculum vitae, were provided in this manner. In Sherrer [v. Embry, 963 So. 2d 79 (Ala. 2007) and Waites [v. Univ. of Ala. Health Servs. Found., 638 So. 2d 838 (Ala. 1994)] this Court held that Rule 56(e), Ala. R. Civ. P., mandates that affidavits affirmatively show the affiant competent to testify and that any referenced document be certified or sworn and attached or served with the affidavit. Because the expert witness's affidavit submitted by [Carraway] failed to comply with either of these mandates of Rule 56(e), the affidavit is inadmissible and not properly before this Court in review of the summary judgment."
Id. at *23 (emphasis added).
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OUR COMMENTS: The Supreme Court's rulings, most recently in Carraway and earlier in Sherrer and Waites, present a double-edged sword that you should both beware of and use to your clients' advantage. Let's assume that you are representing a plaintiff in a product liability action and the defendant manufacturer files a motion for a summary judgment with an accompanying expert's affidavit – a common enough event.
As was the case in Carraway v. Kurtts, the defendant's motion "shall be supported by a narrative summary of what the movant contends to be the undisputed material facts" and the "narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits [ . . . ]. Any supporting documents that are not on file shall be attached as exhibits." Ala. R. Civ. P. 56(c)(1) (emphasis added).
Here's where the sword sharpens on both sides: Rule 56(e) says: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith." (emphasis added)
If the moving defendant's affidavit does not meet all of those "shall" requirements in Rule 56(e), then the defendant's goose is cooked, no more and no less, than was the plaintiff's in Carraway. And don't think that the Alabama Supreme Court won't find it error to grant summary judgment to a moving defendant who failed to meet the requirements of Rule 56! Last year, in Horn v. Fadal
Last year, in Horn v. Fadal Machining Centers, LLC, Ms. 1051161, 2007 Ala. LEXIS 26, 1007 WL 431427 (Ala. Feb. 9, 2007), the Supreme Court reversed a summary judgment that was entered in favor of a defendant machine manufacturer, Fadal, in a wrongful death action where the plaintiff's decedent was killed by a vertical milling machine. Justice Woodall's opinion for the Court found:
"Having filed no memorandum of law, Fadal filed no narrative summary of undisputed facts as required by Rule 56(c). The summary-judgment motion contains only conclusory allegations regarding (1) the adequacy of the warnings affixed to the machine, (2) the substantiality of the alteration to the machine, (3) [the decedent's] awareness of the condition of the cutting tool, (4) her alleged method of tightening the tool, and (5) the proper operating speed of the machine. Although the motion was accompanied by affidavits, it did not 'include specific references to pleadings, portions of discovery materials, or affidavits for the court to rely on.' Northwest Florida Truss [Inc. v. Baldwin County Comm'n,] 782 So. 2d [274 (Ala. 2000)] at 277. It was nothing more than 'a simplistic motion devoid of a narrative summary and specific references to those portions of the record [purporting to demonstrate] that no genuine issue of material fact exists.' Id.
2007 Ala. LEXIS 26 at *10-11 (emphasis added).
A lengthening line of Alabama appellate decisions consistently has overturned summary judgments that were granted when the movants filed conclusory motions without the requisite "narrative summary with specific references." Moore v. ClaimSouth, Inc., 628 So. 2d 500 (Ala. 1993); Thompson v. Rehabworks of Florida, Inc., 727 So. 2d 807 (Ala. Civ. App. 1997); Hale v. Union Foundry Co., 673 So. 2d 762 (Ala. Civ. App. 1993); Northwest Florida Truss, Inc. v. Baldwin County Comm'n, 782 So. 2d 274 (Ala. 2000); and Horn v. Fadal Machining Centers, LLC, 2007 Ala. LEXIS 26 (Ala. Feb. 9, 2007).
When a defendant files a defective, "simplistic motion," it is your job as the plaintiff's attorney to point out that fact to the trial court by way of a motion to strike the defendant's motion, based upon Rule 56(c)(1) and the case law just cited. That case law says the trial court commits reversible error if it grants the simplistic summary judgment motion. Moreover, if a defendant files a motion for summary judgment that relies upon an affidavit that is not properly supported with "sworn or certified copies" of the papers referenced in the affidavit, you should file a motion to strike the affidavit and the summary judgment motion, on the basis of the text of Rule 56(e) and the explanatory authority of Carraway, Sherrer and Waites, discussed above.
We still believe, however, that you also should file a proper response, with a narrative summary of disputed material facts per Rule 56(c)(1), and make sure that your own affidavits have the required sworn or certified copies attached to them. (You never know when they might change their minds.)
Nothing in our Rules of Civil Procedure says that they have to always work to the advantage of defendants. There is plenty of gold you can mine out of those Rules for plaintiffs, as well.
